Himachal Pradesh High Court
Pyare Lal vs State Of Himachal Pradesh on 7 November, 2019
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P.(M) No. 1936 of 2019
Decided on:07.11.2019
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Pyare Lal ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
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For the Petitioner : Mr. Pratap Singh Goverdhan,
Advocate.
For the Respondent : Mr. Anil Jaswal and Ms. Rameeta
Rahi, Additional Advocate
Generals.
HC Devender Kumar No. 36, Police
Station Solan, present along with record.
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Jyotsna Rewal Dua, J.(oral)
Instant petition under Section 438 Cr.P.C has been moved for grant of anticipatory bail in FIR No. 219/2019, dated 11.10.2019, registered at Police Station Solan under Section 20 of Narcotic Drugs and Psychotropic Substances Act. The interim protection was granted to the petitioner by this Court on 23.10.2019.
2. I have heard Sh. Pratap Singh Goverdhan, learned counsel for the petitioner, Sh. Anil Jaswal and Ms. Rameeta Rahi, learned Additional Advocate Generals for the State. I have also gone through the 1 Whether reports of Local Papers may be allowed to see the judgment?
::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 2status report filed today by HC Devender Kumar and relevant record of the case, necessary for adjudication of this petition.
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3. The status report/record, reveals that:-
On 11.10.2019, I/C SIU team of District Solan received the information that the bail petitioner had cultivated in his fields at Village Gadog, P.O. Ochghat, Tehsil and District Solan a large number of cannabis plants; where-after, further action was taken by the police party in accordance with law and it was found that on Khasra Nos. 93, 94, 95, co-
owned by the bail petitioner, 9206 cannabis plants were standing along with vegetable crops of tomatoes, peas and capsicum; 9198 cannabis plants were destroyed by the authorities in accordance with law; 8 plants taken as specimen were confirmed as cannabis by the chemical analysis results obtained from SFSL, Junga.
4. It is apt to refer to the guidelines for grant/or refusal of pre-
arrest bail, reiterated by the Hon'ble Apex Court in Cr. Appeal No. 1340 of 2019, titled Shri P. Chidambaram vs. Directorate of Enforcement, decided on 05.09.2019, relevant segments whereof are reproduced hereinafter:-
"67. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of ::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 3 anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such .
power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.
72. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court held as under:-
"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case li ke this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves ::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 4 in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."
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73. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B. (2005) 4 SCC 303, it was held as under:-
"19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code."
74. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694, the Supreme Court laid down the factors and parameters to be considered ::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 5 while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is .
made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
75. After referring to Siddharam Satlingappa Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, the Supreme Court held as under:-
"19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty.
(See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Jusain Mohd. S. Husain (2008) 1 SCC 213and Union of India vs. Padam Narain Aggarwal (2008) 13 SCC 305.)"
In 2016 (1) SCC 152, titled as Bhadresh Bipinbhai Sheth vs. State of Gujarat and another, Hon'ble Apex Court, held thus:-
"21. Before we proceed further, we would like to discuss the law relating to grant of anticipatory bail as has been developed through judicial interpretative process. A judgment which needs to be pointed out is a Constitution Bench Judgment of this Court in the case of Gurbaksh Singh Sibbia and Others v. State of Punjab. The Constitution Bench in this case emphasized that provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty.::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 6
Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a .
pre- arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the 'touch' or confinement contemplated by Section 46 of the Code. The essence of this provision is brought out in the following manner: (Gurbaksh Singh case, SCC p. 586, para 26) "26. We find a great deal of substance in Mr Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is ::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 7 conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open .
to a Constitutional challenge by reading words in it which are not to be found therein."
25. The principles which can be culled out, for the purposes of the instant case, can be stated as under:
25.1 The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law. 25.2 The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
25.3 It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire ::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 8 family and at times for the entire community. Most people do not make any distinction between arrest at a pre-
conviction stage or post-conviction stage.
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25.4 There is no justification for reading into Section 438 Cr.PC the limitations mentioned in Section 437 Cr.PC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 Cr.PC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
25.5 The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.
25.6 It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 925.7 In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be .
unreasonable to compel the accused to surrender before the trial court and again apply for regular bail. 25.8 Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 Cr.PC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
25.9 No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. 25.10. We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:
(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused's likelihood to repeat similar or other offences;::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 10
(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
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(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Section 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern;
(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail."::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 11
5. In the light of above principles, following facts emerging from status report need to be noticed:-
(a) The bail petitioner has joined investigation pursuant .
to the order passed by this Court on 23.10.2019 and is cooperating with the Investigating Agency.
(b) No recovery is to be effected from the bail petitioner.
(c) Custodial interrogation of the bail petitioner is not required.
(d) Khasra Nos. 93, 94 and 95 where the cannabis plaints were allegedly found standing, are not in the sole ownership and possession of the bail petitioner rather the land is jointly owned by him along with others.
(e) There is no criminal history of the bail petitioner.
(f) The bail petitioner is aged around 61 years.
(g) Status report also mentions growing of the vegetable crops of tomatoes, peas, capsicum over the fields in the area in question. It has not been investigated as to whether the cannabis plants allegedly found over the area in question were natural/wild growth or were cultivated deliberately.
6. In view of the above, the interim protection granted on 23.10.2019, is made absolute. It is ordered that in the event of arrest of the ::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 12 petitioner in FIR, as mentioned above, he shall be enlarged on bail, on his furnishing personal bail bond in the sum of Rs. 25,000/- (rupees twenty five .
thousand only) with one surety in the like amount to the satisfaction of the Arresting Officer, subject to following conditions:-
i) The petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law.
ii) The petitioner shall not hamper the investigation in any manner whatsoever.
iii) The petitioner undertakes not to contact the complainants, to threaten or browbeat them or to use any pressure tactics in any manner whatsoever.
iv) The petitioner shall not leave India without prior permission of this Court.
v) The petitioner undertakes not to make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer or tamper with the evidence.
vi) In case of launching of prosecution, petitioner shall attend the trial and will appear before the Court on each and every date and in case of inability, will seek exemption in accordance with law.
It is clarified that the observations made above are only for the purpose of adjudication of the present bail petition and the learned Trial ::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 13 Court shall not be influenced by any of these observations while deciding the case on merits. It shall be open for the prosecution to move for .
cancellation of the bail in case the petitioner abuses the liberty granted and breaches the conditions of bail. The petition stands disposed of in the above terms.
(Jyotsna Rewal Dua) Judge 7th November, 2019 (reena) ::: Downloaded on - 08/11/2019 20:24:49 :::HCHP 14 .
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